Teens Have No Privacy Right to Consensual Sexual Conduct

Aid for Women v. Foulston, 10th Cir. No. 04-3310 (1/27/06)(unpub'd) - In a lawsuit challenging Kansas' requirement that certain professionals, including doctors, and teachers, report consensual sexual activity by those under 16 with similarly-aged minors, the 10th holds that minors have a right to informational privacy, although not as great as adults have. However, it was not substantially likely that the plaintiffs would succeed so as to warrant an injunction of enforcement of that requirement because in Kansas sexual activity by anyone under 16, even if it is consensual and with another minor, is illegal and thus, not entitled to constitutional protection. Our own Judge Herrera dissented, arguing that Kansas' interest in the information is weak because it does not act on information about voluntary sexual conduct between adolescents of a similar age and that interest does not outweigh the very strong interest of the minor in keeping the very personal information private. "The fact that a state criminalizes voluntary sexual conduct cannot alone extinguish a federal right," she says.